• T. THAVALINGAM & CO.

High Court: Minister cannot override his own decision

SilTerra Malaysia Sdn Bhd v. Menteri Sumber Manusia & 3 Ors

Kuala Lumpur High Court Judicial Review Application No. WA-25-260-09/2020


Earlier today, the High Court granted an order of certiorari and quashed a decision of the Minister of Human Resources which had rejected an appeal by SilTerra Malaysia Sdn Bhd ("the Company") against the competency of the Electronics Industry Employees Union ("the Union"), in light of a prior decision in favour of the Company.


In early 2015, the Union had filed a claim of recognition, seeking to represent the Company's employees. The first part of the recognition process, requires the Director-General of Industrial Relations ("the DGIR") to conduct enquiries into the competency of the trade union to represent the workers involved, and this task is typically referred to the Director-General of Trade Unions ("the DGTU").


In August 2019, the Company was informed that the DGTU had concluded that the Union was competent to represent its workers. Being dissatisfied with this decision, the Company appealed to the Minister under section 71A of the Trade Unions Act 1959, and the Minister had thereafter allowed the Company's appeal vide a letter dated 29 November 2019.


However, in July 2020, the Company was informed by the DGIR that it intended to proceed with Union's claim for recognition by conducting a secret ballot. After seeking clarification from the DGIR, the Company was informed that the Minister had, vide a decision dated 26 February 2020, purported to reject the Company's earlier appeal.


Being aggrieved by the two conflicting decisions -- the first dated 29 November 2019 and the second, 26 February 2020 -- the Company applied for judicial review.


Justice Dato’ Ahmad Kamal bin Md Shahid, after hearing submissions from all parties, had allowed the Company's judicial review application, agreeing with the Company's position that the Minister had no power to overrule his first decision, having being rendered functus officio once the same had been made. The learned High Court Judge took note of the fact that the power reposed on the Minister to decide an appeal under section 71A of the Trade Unions Act 1959 is "final and conclusive", and he had no authority to revisit, review or override any decision, once given.


The learned High Court Judge also placed reliance on the decision of the Federal Court in Tenaga Nasional Bhd v. Bandar Nusajaya Development Sdn Bhd [2016] 8 CLJ 163, where the apex court held that once an appeal was accepted by a quasi-judicial authority, that authority was functus officio in the absence of any specific legal power to review its own decision.


Taken altogether, the High Court ruled that the Minister's second decision was void and of no legal effect, thus restoring the original decision allowing the Company's appeal and confirming that the Union was not competent to represent the Company's employees.


This decision underscores the importance of observing the limits of statutory power, specifically when such power can affect the rights and liabilities of the public at large.



SilTerra Malaysia Sdn Bhd was represented by our Managing Partner, Dato' Thavalingam C. Thavarajah and Partner, David Tan Seng Keat.


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